Is It Becoming More Relevant To Avoid Greenwashing?

• Published date: 15 March 2024
• Law Firm: Potter Clarkson
• Author: Lars Karn'e and Emily Dahl Jensen

So, is it becoming more relevant to avoid greenwashing? The short answer is "YES"!

Last Friday the Danish High Court published its decision on the Danish Crown case. In short, the conclusion was:

• After an overall assessment, the phrase "Danish pigs are more climate-friendly than you think" was deemed not to be misleading in and of itself. This is namely due to its relative nature along with probative evidence found in existing reports on pork's relative CO₂ emissions compared to other protein sources such as beef.
• Contrarily, "climate-controlled pork" was considered a free-standing and general statement, which gave consumers the impression that the pork was subject to an actual qualitative environmental control corresponding to authorised environmental labels. Danish Crown was unable to prove that this was the case Therefore the claim was misleading.

For further information on the case, you can refer to Greenwashing: A Persistent Challenge to Achieving Sustainability.

WHAT IMPACT COULD THE DANISH CROWN CASE HAVE ON THE EU'S LONG-TERM APPROACH TO GREENWASHING?

This landmark decision is proof that it is now imperative to avoid any possibility of an accusation of greenwashing. There are two reasons for this:

• The Danish Crown decision has more clearly defined what companies can and cannot do when marketing their product; and
• The implementation of the newly adopted EU Directive to empower consumers for the green transition by the end of 2026.

The Danish Crown case proves that companies need to be mindful when using 'green' claims to market their products as the Courts can and will enforce relevant legislation. This is also supported by the Consumer Ombudsman's approach on the subject which has already spawned filings of criminal charges with the police. These reports are very likely to lead to convictions in which case fines will be imposed.

While the Danish Crown case cannot be used to ascertain the size of these fines due to the case being filed by an interest group, it can safely be assumed that future fines will be considerable.

In addition to the legal ramifications, companies also face significant commercial damage as a result of consumer mistrust and skepticism. A report from the Danish Competition and Consumer Authority revealed that consumers have no or little trust in the 'green' claims being made by various and the consequences of this mistrust cannot be underestimated.

In short, the implementation of the newly adopted EU Empowering Consumers...